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Prison visitor’s tort suit goes forward

Virginia Lawyers Weekly//June 25, 2023

Prison visitor’s tort suit goes forward

Virginia Lawyers Weekly//June 25, 2023//

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Sovereign immunity does not bar a suit under the Virginia Tort Claims Act brought by appellee who alleges prison personnel mistreated her when she came to the prison to visit her husband.


Appellee alleges that prison personnel subjected her to strip and body cavity searches twice after K-9s alerted to her. The searches were performed in connection with appellee’s visits with her husband, who was a prison inmate.

Appellee alleges that she never saw the K-9s alert to her, and no contraband was ever discovered during these searches.

She also alleges that she overheard prison employees making “derogatory comments … regarding her religious clothing.” She further claims that when she brought all of this to the attention of Virginia Department of Corrections officials, her husband was transferred to a prison three and one-half hours away from where she lived.

“Appellee filed a complaint in the Sussex County Circuit Court (the ‘trial court’) … naming several VADOC employees and the Commonwealth as defendants.

“Count I asserts a claim under the VTCA, assigning liability to the Commonwealth for the alleged tortious acts of the VADOC employees. Her complaint alleged the officers ‘breached their duty of ordinary care’ owed to her and ‘acted wrongfully’ during her multiple visits to the prison.

“The Commonwealth filed a plea of sovereign immunity and motion to dismiss[.] … In its plea, the Commonwealth asserted the VTCA ‘limit[s] [its] waiver of immunity to only those matters where a private person could be liable’ and thus ‘preserves immunity for exclusively governmental functions,’ such as operating a prison.”

The trial court ruled that “‘[t]he creation of policies governing who may enter a prison is indeed a legislative function of an agency for which the Commonwealth is immune, and when their enforcement is mandatory, that immunity remains.

“‘Yet when the enforcement of these rules is alleged to be negligent or discriminatory, the function becomes discretionary, thereby eliminating the defense of immunity.’

“The court accordingly denied the Commonwealth’s plea of sovereign immunity[.] … The Commonwealth … filed a petition for review …, which this Court granted[.]”

Private-person clause

“In 1981, the General Assembly enacted a limited waiver of sovereign immunity through the VTCA, codified at Code §§ 8.01-195.1 through -195.9. The VTCA subjects the Commonwealth, under certain circumstances, to liability for ‘negligent or wrongful act[s] or omission[s].’ …

“Specifically, the statute states, in relevant part, that ‘the Commonwealth shall be liable for claims for money … on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth … , if a private person, would be liable to the claimant for such damage, loss, injury or death.’ … (emphasis added).

“The Commonwealth’s primary argument seizes on the emphasized language above – referred to here as the ‘private-person clause.’ The clause, the Commonwealth claims, refers to the function the Commonwealth’s employees are performing when they commit an allegedly tortious act.

“A private person cannot operate a prison, says the Commonwealth. That is instead a ‘governmental function’ for which the Commonwealth cannot be liable.

“Put simply, the Commonwealth reads the VTCA to maintain its immunity from tort liability where the allegedly tortious act or omission arises from the performance of any governmental function.

“This interpretation misunderstands the plain meaning of the VTCA. Read in context, the clause waives sovereign immunity ‘under those circumstances where … a private person[] would be liable to the claimant.’ …

“That language poses a hypothetical. It focuses not on whether a private person ‘could’ perform the same activity but whether liability ‘would’ exist if the Commonwealth were swapped with a private person.

“If a claimant would have a legitimate cause of action against a private person under traditional tort principles – duty, breach, proximate causation, and damages – then the Commonwealth has waived its immunity for such a claim and may be liable just as a private person would.”

Fallacious interpretation

“The VTCA’s enumerated exceptions reveal the fallacy of the Commonwealth’s interpretation. Almost all of the statute’s exceptions refer to governmental functions.

“One, the ‘legislative-function exception,’ retains immunity for ‘a]ny claim based upon an act or omission of the General Assembly or district commission of any transportation district, or any member of staff thereof acting in his official capacity, or to the legislative function of any agency subject to the provisions of this article.’ …

“Another, the ‘judicial-function exception,’ precludes liability for ‘[a]ny claim based upon an act or omission of any court of the Commonwealth, or any member thereof acting in his official capacity, or to the judicial functions of any agency subject to the provisions of this article.’ …

“Other exceptions maintain immunity for ‘[a]ny claim based upon an act or omission … in the execution of lawful order of any court,’ as well as those ‘arising out of the institution or prosecution of any judicial or administrative proceeding, even if without probable cause.’ …

“Yet another ensures the Commonwealth cannot be sued for ‘[a]ny claim arising in connection with the assessment or collection of taxes.’ …

“Were the private-person clause to mean that the VTCA does not waive sovereign immunity whenever the government performs any governmental function, then the VTCA would not need any of the explicit exceptions listed above – all of which describe quintessential governmental functions. The Commonwealth’s interpretation would thus render those specific exclusions surplusage.”

Legislative-function exception

“Appellee alleges negligence not in the way VADOC employees adopted policy but instead in how they executed those policies, including their failure to follow existing policy and procedures.

“Unlike the design of a sidewalk, the corrections officers’ alleged actions did not involve discretionary policy decisions such as ‘determin[ing] whether public funds should be expended.’ …

“The execution of policies and procedures is not a legislative function. And under the private-person clause, the Commonwealth may still be liable for those sorts of actions.

“The trial court therefore did not err in concluding the legislative-function exception does not bar appellee’s claim.”


Commonwealth v. Muwahhid, Record No. 0618-22-2, June 13, 2023. CAV (published opinion) (Huff) From the Circuit Court of Sussex County. (Saunders Jr.) D. Patricia Wallace, Jason S. Miyares for appellant. Christopher M. Okay for appellee. VLW 023-7-220, 14 pp.

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